Jury to decide: Self-defense or murder?

Updated 10:45 pm, Wednesday, January 15, 2014

SAN ANTONIO — A San Antonio man who shot and killed his mother's fiance in 2012 did so in self-defense to avoid being choked, his lawyer contended Wednesday as his murder trial began.

But state prosecutors alleged that Joshua Orcasitas is the one who pursued Roger Hernandez, 43, before shooting him in the head — a contention that, if believed by jurors in the 175th state District Court, could make the self-defense claim invalid under the law.

According to a witness account from police, Hernandez had been drinking at his East Side home when he became combative. He walked out of the house, and the defendant followed, prosecutors Karl Alexander and Meredith Chacon contend.

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Prosecutors' key eyewitness, Gary McCray, testified that Orcasitas and Hernandez at first did not appear to be arguing, but he added that Orcasitas had a gun in his hand that he later pointed at the back of Hernandez's head. At one point, McCray testified, Hernandez tried to take the gun away from the defendant. But Orcasitas instead hit Hernandez in the head with it, resulting in blood spatter, he said.

“I saw Roger try to take the gun from that young man right there,” McCray said, motioning to Orcasitas at the defense table.

The gun went off and a bullet went in the ground across the street, McCray added. He told an investigator for the defense prior to the trial that Orcasitas shot Hernandez in the forehead from about 6 inches away.

Orcasitas' lawyer, Michael Gross, pointed to inconsistencies in McCray's police statement, his testimony and what he later told an investigator for Gross. Gross noted, for instance, that there was no bullet across the street and that Hernandez was shot on the left side of the head — not in the forehead.

“Your memory is not as good now?” Gross asked.

“No, sir,” McCray said. “It's been awhile.”

Witnesses said Orcasitas had tried to calm Hernandez but Hernandez began to punch him, police said at the time of the incident. The men wrestled, police said, and Hernandez was overpowering Orcasitas.

Hernandez had been accused in family violence incidents before. He was arrested on suspicion of assaulting a relative in 2001 and 2003 and was accused of sexual assault in 2002 and 2003. He was sentenced in 2003 to seven years for sexual assault. Prosecutors acknowledged that “he had a past” but said he didn't deserve to be murdered.